Tuesday, December 2, 2008

Last fall, I wrote about a writer friend of mine who'd found herself in a moral quandary. The subject of her first true-crime book was on trial for murder. Again. My friend's publisher wanted her to attend the second murder trial for an updated version of her book. That was all well and good—until my friend learned she would not be able to cover the proceedings. She had been named as a witness.

So that we're all on the same page, we'll revisit my first story, "Jane's Affliction," and then I'll fill you in on what happened with my friend:

Meet Jane

I have this friend. We'll call her Jane. She's a journalist and true-crime author. For reasons that will shortly become evident, Jane would prefer to remain anonymous. Actually, she'd rather be forgotten altogether, and by one person in particular: a prosecutor who recently tagged her.

See Jane Subpoenaed

I learned of Jane's predicament by e-mail. In my Inbox was a message with the subject line "Whoa! What does this mean?":

I just got my mail out of the box and found a big package from the [redacted] DA's Office. In it was the transcript of my interview with [the Defendant] and a note that said here are copies of your reports and transcripts of your involvement in the [redacted] case. . . . What does this mean? Is this a hint that I'm going to be called to testify?

It was more than a hint, she soon discovered, when the subpoena arrived. Prosecutors wanted Jane to testify in a capital murder trial in California.

During Jane's research ten years ago, she'd interviewed the man who would go on trial for his life a second time—not for the murder Jane wrote about, but for another killing. In the 2007 capital murder trial, the prosecution wanted Jane's testimony to show a consistent modus operandi in the separate slayings.

Problem was, this writer did not want to testify. The issue was not over a breach of journalism ethics; Jane never promised this particular source confidentiality. In fact, what she learned during her interview had already been published in Jane's book.

For Jane, the sticking point was that the prosecution stated its intent to seek the death penalty. Jane is against capital punishment.

See Jane on the Fence

Jane sought my advice because she remembered a subpoena I received in a murder case. I was practically in tears when I discussed my situation with her. So when Jane e-mailed me, she expected I would empathize. And I did, to a degree.

But my dilemma had been different from Jane's. My concern was with protecting my sources. Jane is bound to protect a core belief. And she is tormented by the thought of violating it:

The more I think about it the more uncomfortable I am. They're going for the death penalty. And I'm just not sure I can help put someone to death, even if he is a murderer. . . .

See Jane Suffer Subpoena Syndrome

Something about reading an official document that "commands" you to do something you consider fundamentally wrong messes with your mind. Reason tends to leave as abruptly as the subpoena arrives.

I suspected that Jane, a best-selling author with many years on me in the business, was suffering from something that afflicted me early in my writing career: subpoena syndrome.

I tried to break things down into terms she could live with. I reminded Jane that this type of proceeding, a capital case, contains two trials: In the first, called the "guilt/innocence phase," a defendant's culpability is determined, and if found guilty, the accused is convicted. In the second stage, known as the "punishment phase," a penalty is assessed.

Jane was told she would testify as part of the case in chief, not during the stage in which the death penalty is considered. This meant that Jane's testimony should have no bearing on whatever penalty was decided. Even if she were to testify during the punishment phase, the decision as to whether the man will live or die would not be left to Jane.

In my reply, I tried to ease Jane's conscience: "You need to put the death penalty out of your mind. Prosecutors may seek it, but it's up to the jury to choose death as a punishment."

The way I saw it, the decision would be out of her hands. But Jane could see nothing but blood on her hands if she testified.

See Jane Take a Stand(?)

Taking the stand at any stage of a trial where execution is an option, Jane reasoned, amounts to helping the prosecution put a man to death:

[I]n my heart, mind, in every limb of my body and soul, I think the death penalty is wrong, utterly wrong. So how can I grease the wheels to it? . . . Beyond my moral and ethical beliefs, I also disagree with their death penalty decision because it gives [the Defendant] what he wants. And it seems to me that to [him] the greater punishment, the more horrible punishment, would be life in prison since that's the very thing he did not want.

Jane never expressed doubt about the man's guilt. What she's uncertain of is her ability to testify, if doing so might result in the state taking a man's life. But if she refused, Jane could wind up in a jail cell for contempt of court.

See Jane ______________

So what did Jane do? . . . It's not a secret anymore, nor is the identity of my friend, Suzy Spencer. Today, her publisher re-released her first book, WASTED, and you can read all about the capital murder trial that Suzy was caught up in.

An Austin Chronicle reviewer called the book "everything a true crime book should be: lean, fierce, and unsparing." The story is riveting. From the back cover:

In 1995, Austin, Texas was rocked by the brutal murder of a lesbian princess named Regina Hartwell. Even though Regina's body was burned beyond recognition, within days police had two suspects. One was the beautiful ex-cheerleader who was the object of Regina's desire. The other was a man who would take the fall for murder. . . . In this new edition of her bestselling book "Wasted", true crime master Suzy Spencer chronicles a fatal love triangle—and lives driven out of control by sexual desire, drugs, and shocking childhood demons. Four years after Regina Hartwell's murder, a new charge was brought against one of her suspected killers. Now, Suzy Spencer adds a new chapter to "Wasted"—detailing a killer gone wild, a nerve wracking legal standoff, the shocking twists that would take place in a second, explosive trial. . . .

Long story short, Suzy did not dodge the trial. She flew to California, not in compliance with the prosecution's subpoena, but at the request of the defense. Her presence meant she would have been available for questioning by either side, though she might have refused to answer for the State. She did not end up testifying at all. Court was canceled that day—in part, Suzy explained, because Justin didn't want any witnesses testifying on his behalf for fear it would ruin his chance of receiving the death penalty.

In the end, Justin Thomas was convicted and sentenced to death. Without putting Suzy on the stand, the State opted to use a portion of the transcript from her taped interview, which was introduced in the punishment phase. As it turned out, Justin's own words netted him a death sentence.

After Suzy's legal battles with this book and with BREAKING POINT, on the Andrea Yates case, she considers the 10th anniversary edition of WASTED her "good-bye" to true crime. Her entry into true crime—hitting the New York Times best-seller list with her first book—was as unconventional as her exit. The "true crime master" has converted to sex book mistress, working on a memoir of sex in America for Berkley. Few would blame her for trading Draconian courtrooms for Hedonism resorts.

As for Justin Thomas, he is now #G11032 at San Quentin State Prison, home of Scott Peterson and Richard Ramirez. Like most prisoners of California's Death Row, Justin will probably die waiting to be executed (assuming the current moratorium is lifted). If so, his "death sentence" will have been converted into what he feared more: the rest of his life in prison, with little hope of his suffering cut short.

That statistics indicate Justin Thomas will not be executed at all should bring Suzy some measure of relief. But not enough to stay in true crime.

Shreela" - You raise interesting questions. That you had never considered the possibility of someone walking free because of a witness's personal beliefs is a pretty good indication that it doesn't happen often, if at all. I can say that it didn't happen in Suzy's case. The State used her transcript and the defendant was given the death penalty.

While hesitating to cooperate based on a personal belief is probably pretty rare, it is not uncommon at all for writers to refuse to testify to protect sources promised confidentiality.

It used to be that subpoenas to news media were rarely issued. My federal subpoena was the first of its kind in 10 years.

That said, I can tell you that my position did not allow a murderer to walk free. Before jailing me, the prosecutors told the judge that they would be seeking the death penalty and that the government could not indict without my cooperation. Neither of those statements turned out to be true. The government indicted the man without my information and prosecutors opted against the death penalty. The defendant "walked" when he was released on bond and fled the country.

The reality is the party most likely to "throw" a murder case is not a witness but the defendant. In cases where someone's life is on the line, it is not uncommon for witnesses to be intimidated or made "unavailable" one way or another.

Shreela, I knew that Justin wouldn't walk free because he was already serving a life sentence in Texas. Yes, he was eligible for parole after 30 years, but he'd been in trouble in prison, which made me believe he wouldn't be getting out.

Also, last year, as Vanessa and I talked back and forth about this, I wondered if I'd feel differently if he hadn't been serving a life sentence. And I wondered if I'd feel differently if he'd been -- and he wasn't -- a child molestor. I still don't know the answer to those two I-wonders.

Sexpert Suzy Spencer will be our special guest Saturday December 21st 2pm Pacific Time on TRUE CRIMES, the Internet radio show hosted by Burl Barer and Don Woldman. She will be interrogated in depth about her bizarre personal proclivities, her obsession with fuzzy slippers and Snoopy boxer shorts, plus hounded to tell all about WASTED. This will be a thrill for anyone who enjoys Suzy Spencer -- and that list is mounting rapidly.It will be fun and informative and contain content bordering on good taste.For a listen live link, visit http://outlawcrime.com

I'm sorry, I just don't understand the hesitation. Regardless of the sentence (even jurors are told NOT to speculate on the sentence), IMO, you get up there and tell the truth, to the best of your ability. This has nothing to do with "protecting your source" but everything to do with doing your duty as a human being.

BTW, can I ask WTH is a "lesbian princess???" Talk about salacious....

I'm with Soobs. She said it all. Your job isn't to decide punishment. Your job is to tell the truth and let the system do it's job. If you are against the death penalty, work to change that law, that's your right as an American Citizen. But to refuse to testify because a defendant MIGHT receive the death penalty is irrisponsible, and dare I say ILLEGAL? What if someone chose not to testify because they felt strongly that prisons were cruel? Or that "Jesus" has forgiven the defendant? IF all of us tried to base our testimony on our own beliefs, it could easily and quickly lead to anarchy.

I ALSO want to know what a lesbian princess is,,,

although it's an old article and I doubt there will be a response, I felt strongly about my answer and had to back up soobs.